WHOLE-LIFE ORDERS: ECHR AND UK
Three prisoners serving life sentences together with ‘whole-life’ orders, imposed by the judiciary at the time of sentence, applied in 2010 to Strasbourg, alleging violation of their human rights.
The ‘tariff’ of whole-life was the result of a judicial calculation of the culpability for murder: the so-called ‘exceptionally grave’ or the ‘worst of the worst’ should be sentenced to life imprisonment, with no minimum period of incarceration, but committal for their ‘wholelife’. Should this mean, literally, the whole of the murderer’s natural life, thus denying them at any time a review so as to mitigate the essence of ‘whole-life’? It was at this point in the penological numbers game that the question was raised by prisoners, whether imprisonment for the rest of a murderer’s natural life violates Article 3 of the European Convention on Human Rights as being ‘inhuman or degrading treatment or punishment’.Without dilating on a veritable overload of legal reasoning from both the English and the Strasbourg courts, the following timetable of court hearings assists in understanding the issues and the outcome (so far, in 2015).
On 17 January 2012 a seven-judge panel in the European Court of Human Rights, by four votes to three, held that there was no violation. The dissenters were the presiding judge, Judge Garlicki, with Judges David Thor Bjorgvinsson and Nicalaou.
On 9 July 2013, the Grand Chamber of 17 judges, by 16 votes to one, allowed the appeals. Notably, the Irish member, Judge Ann Power, delivering a short concurring opinion, said that what tipped the scale in favour of the prisoners was the acceptance of a ‘right to hope’ being encompassed in the right to humane punishment.
On 24 January 2014, the five-judge English Court of Appeal, presided over by the Lord Chief Justice, Lord Thomas, agreed with the Strasbourg Court that a literal ‘whole-life’ order would be a violation of the Convention, but that the law in this country did not necessarily mean that the whole life of the prisoner would be spent in custody, because the Secretary of State has the legal power to review a ‘whole-life’ order.
This ruling depended upon a construction of section 30 of the Crime (Sentences) Act 1997 which gives the Secretary of State the power to release a ‘lifer’ if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.15 The English judges concluded that on the narrower issue, there is present in English law a ‘dedicated review mechanism’ so as to comply with the Article in the Convention on the validity of a whole-life order for murder. The European Court of Human Rights thought that the legislation in section 30 was lacking in certainty and that the whole-life order was a violation. Lord Thomas said simply: ‘We disagree.’ If that sounds too confrontational, even juristically so, one should remember that the legal maxim decrees that two reasonable decision-makers can reasonably come to two different conclusions.16 Technically there is only one winner. Since the applicants seek a remedy under the Human Rights Act 1998, the English court is the sole governor of its law. Strasbourg’s finding in interpreting the Convention has to be taken into account by the UK court, which it has done. Strasbourg’s jurisprudence does not bind the English court. But one may indulge a lawyer’s appetite for having independent views of Parliament’s meaning in a statute. The problem in the instant case is that when15 Italics supplied. Section 30 of the 1997 Act reads as follows:
‘30 Power to release life prisoners on compassionate grounds.
(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.
(2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.’
16 The maxim is based on a statement by Lord Hailsham LC in the case of Re W (An Infant) [1971] AC 682, 700, where he said: ‘Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable.’ reading of section 30 of the 1997 Act one must see it in context.
While it specifically covers every sentence of life imprisonment (which definitionally includes life imprisonment without benefit of parole), the statutory order of whole-life in Schedule 21 to the 2003 Act was not then in existence, even though at that time it was functional in administrative terms. It seems to me that the whole-life sentence was not part of ‘a dedicated review mechanism’. The section conferred a power, ‘in exceptional circumstances’, to a Minister to release a life prisoner on licence. As regards those given a wholelife order, nothing is explicitly said about a ‘review’ after the service of a minimum (or tariff) term; nor does it specify that the possibility of a review or discharge should be given expression to at the point of the trial judge passing sentence.It is an intriguing situation between a municipal court and a supranational court which is the guardian of specific human rights; ideally, a case for mutual respect and judicial dialogue. Perhaps the Council of Europe will consider conferring such a power on judges to powwow.[118]